In the landmark 1957 case Sweezy v. New Hampshire, the Supreme Court established itself as a guardian of academic freedom. Paul Sweezy, a Marxist economist and public intellectual, was not an academic when he came to the attention of New Hampshire’s Attorney General. The Attorney General was conducting an investigation under the New Hampshire Subversive Activities Act of 1951, which outlawed “subversive organizations” and made “subversive persons” ineligible for state employment. Sweezy had refused to answer questions about a guest lecture he delivered at the University of New Hampshire. He was suspected, the Attorney General’s questions indicated, of having used the lecture to advocate Marxism.
Sweezy was held in contempt. In a 6-2 decision, the Court later determined that his rights had been violated. Earl Warren’s majority opinion insisted on the “essentiality of freedom in the community of American universities.”
Felix Frankfurter’s concurring opinion, which focused more directly, albeit not exclusively, on academic freedom, was sharper. “Political power,” he wrote “must abstain from intrusion into this activity of freedom . . . except for reasons that are exigent and obviously compelling.” Society’s good depends on the advancement of knowledge which depends on inquiry being as “unfettered as possible.”
Frankfurter does not say simply “unfettered.” But it’s noteworthy that, in a case pitting New Hampshire’s right to anticipate “violent overthrow of the Government” against academic freedom, the Court decided against New Hampshire.
Sweezy is still a sound interpretation of the law, but its principles have fewer friends than one would wish. Today, state legislators, faced not with the specter of Soviet Communism but with educators who teach or wish to teach “critical race theory” (CRT), are trying to root CRT out of not only K-12 education but also our colleges and universities.
The True Act, proposed in Pennsylvania, is among the most far-reaching of these efforts. That law would ban even the assignment of books and articles that advocate or express “racist or sexist concepts.” Under the proposed Act’s broad understanding of racist concepts, readings that favored affirmative action could not be assigned. It is racist to say that “an individual should receive favorable treatment due to the individual’s race.” And, under the proposed Act, a teacher cannot “require a student to read, view or listen to a book, article, video presentation, digital presentation or other learning material that espouses, advocates or promotes a racist or sexist concept.”
Setting aside affirmative action, it is good teaching practice to read even odious arguments, like those made for Southern slavery, to advance our understanding of history and political theory. Advocates of legislation like the True Act claim to stand for the honest teaching of American history. But under the Act, such teaching is subject to investigation and defunding. As Noah Rothman has suggested regarding other legislative interventions, that’s both illiberal and apt to make the ideology it opposes more sympathetic than it might otherwise be.
That’s a shame because critical race theory is not just, as some proponents now contend, about “teaching American history.” Richard Delgado and Jean Stefancic, both advocates of CRT, explain that it advances a critique of liberalism—which is understood as, among other things, “belief in color blindness and neutral principles of constitutional law.” Indeed, “crits are suspicious of another liberal mainstay, rights.” Along with this view comes a “revisionist” understanding of history, adopted by some critical race theorists, in which civil rights gains reflect not the progress of liberal principles but “interest convergence.” In other words, a coincidence between the interest of the United States in, for example, promoting its image abroad and the interest of black people in ending discrimination.
I, myself, sometimes teach critical race theory, along with other, competing ways of understanding our politics. I don’t think state legislatures should tell us not to teach it. At the same time, I worry about colleges and universities, in their eagerness to demonstrate their “social justice” bona fides, issuing statements, conducting training, and implementing curricular reforms that suggest fealty, if not to critical race theory narrowly, to a distinctly left-wing understanding of justice and the causes of American discontents. When universities as institutions identify themselves with even widely held political interests, they undermine the rationale for academic freedom. When they identify themselves with interests a click to the left of the Democratic Party, they risk the kind of backlash they are now experiencing.
In Sweezy, Justice Frankfurter explains why he sets the standard for legislative infringement on academic freedom as high as he does, even at state universities and when strong state interests are in play. Quoting a statement by South African academics, he wrote that a “university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest.”
University leaders and professors are justifiably up in arms about attempts by state legislators to insert themselves in their classrooms. About other sectional interests, they have, to their ongoing detriment and discredit, not a care in the world.